Chronicle reporter Mark Fainaru-Wada (left) editor Phil Bronstein and reporter Lance Williams (right) talk to the media after the hearing.
Chronicle reporters Lance Williams and Mark Fainaru-Wada appeared at the Federal Building in San Francisco this morning for a hearing regarding their refusal to testify in the Barry Bonds grand jury proceedings. Photo by Michael Maloney / San Francisco Chronicle on 8/4/06 in SAN FRANCISCO,CA MANDATORY CREDIT FOR PHOTOG AND SF CHRONICLE/ -MAGS OUT

A federal judge expressed sympathy Friday for two Chronicle reporters facing subpoenas for their sources of grand jury testimony about steroids in sports, but he said legal precedent works against their request to keep those sources secret.

"I think that you have a very compelling argument" that courts should recognize a right of journalists to protect their sources, U.S. District Judge Jeffrey White told the reporters' lawyer, Jonathan Donnellan, near the end of a hearing in San Francisco that lasted almost two hours. White observed that most states and an increasing number of foreign nations have adopted laws to protect sources and that the federal government has become "more aggressive in going after reporters."

But the judge questioned whether he had a free hand to protect Chronicle reporters Mark Fainaru-Wada and Lance Williams because the U.S. Supreme Court ruled in 1972 that journalists have no constitutional right to refuse to identify their sources before a grand jury.

Also, he noted, the Ninth U.S. Circuit Court of Appeals in San Francisco -- which has carved out protections for reporters in certain types of cases since 1972 -- rejected any such exemptions in a 1993 case involving grand jury testimony.

"No case ... has held to the contrary," White said, suggesting that as a lower-court judge he was bound by the rulings.

In light of those decisions, he asked Donnellan, "aren't you sort of swimming upstream?"

The judge noted that a bill to allow journalists to keep sources confidential, similar to shield laws in California and most other states, has been introduced in Congress but has not passed. California's law affords reporters no protections in federal court.

Donnellan, an attorney for the Hearst Corp., owner of The Chronicle, argued that a 1996 U.S. Supreme Court ruling gave federal judges the authority to follow the trend of state confidentiality laws and allow journalists to protect their sources in federal court. That meant White could grant the Chronicle reporters' request to dismiss the subpoenas, he said.

A ruling against Fainaru-Wada and Williams would be an unprecedented expansion of government authority in grand jury leak cases, Donnellan said, and would strike "a devastating blow to the press and to the public that relies upon it."

He also argued that the news stories that resulted from the leaked testimony had a public benefit -- a congressional investigation into drugs in sports, a new policy for steroids testing in major-league baseball and increased national awareness of the problem -- that far outweighed any harm that the leaks caused.

Friday's hearing was the first in the Chronicle case, which began when a grand jury issued subpoenas in May. White said the case involved a conflict of important public policies: on the one side, the need for grand jury proceedings to remain secret and for witnesses to have confidence that their testimony will not be disclosed; on the other, "the ability of the press to bring important issues to the forefront of public attention."

The judge extensively questioned lawyers for both sides and did not indicate when he would rule. If he upholds the subpoenas and orders the reporters to testify, and they refuse, they could be jailed until the current grand jury's term expires.

Williams and Fainaru-Wada said after the hearing that they would keep their promise of confidentiality even if it meant going to prison.

"I think we're going to get relief, if not from this judge then from an appellate judge," said Williams, 56. "I'm an optimistic person."

But, he added, "we've said we're not going to give the source out. We've decided to maintain confidentiality. What happens to me as a result of that is not up to me."

"If the court decides that they want to send us to jail for this, that's what happens," said Fainaru-Wada, 41. "There's no other option."

Chronicle Editor Phil Bronstein, who attended the hearing, said the newspaper is "standing behind them completely in protecting their confidential sources."

The two reporters wrote articles in 2004 quoting grand jury testimony from Giants outfielder Barry Bonds, Jason Giambi of the New York Yankees, track star Tim Montgomery and others saying they had taken drugs supplied by BALCO, the Bay Area Laboratory Co-Operative. Bonds said he believed he had been using legal substances, but the others admitted knowingly taking illegal performance-enhancing drugs.

BALCO founder Victor Conte and four other men later pleaded guilty to distributing illegal drugs. Most recently, the chemist who created the undetectable steroid known as "the clear" was sentenced Friday to three months in prison and three months of house arrest. A new grand jury is investigating whether Bonds committed perjury, while a separate grand jury probing the disclosures of confidential testimony issued subpoenas to The Chronicle and the two reporters.

In arguing that the public benefit of the stories outweighed the harm caused by the leaks, Donnellan told the judge that the crime being investigated is relatively minor -- the leaker's violation of a court order to keep the grand jury transcripts confidential. He said past cases in which reporters have been ordered to disclose the sources of grand jury leaks have involved more serious crimes.

But White said the current case also could involve charges of perjury and obstruction of justice because everyone with access to the transcripts has issued a sworn declaration denying disclosure. "How can you say this is not serious?" he asked Donnellan.

Other than the source or sources of the leaks, the judge said, the reporters "are the only other witnesses, it appears."

Assistant U.S. Attorney Brian Hershman said the grand jury system, which relies on confidentiality, is damaged by "publishing information that individuals had a reasonable basis to believe would be secret."

"People may be more reluctant to testify before grand juries," he said.

White asked government lawyers whether the Justice Department was trying to penalize reporters who "did a public service." He also asked the prosecutors for their interpretation of the 1996 Supreme Court ruling, which allowed psychotherapists to withhold confidential information about their patients -- a ruling that, according to Donnellan, authorized judges to recognize similar privileges for journalists.

Assistant U.S. Attorney Michael Raphael replied that the 1996 decision made no radical changes in the law and did not change the Supreme Court's 1972 conclusion that journalists must comply with a grand jury's demand for testimony.

Even if judges have some leeway, Raphael said, "it's better to wait for Congress to act."